May 30, 2008
What’s at Issue
In a letter to Acting Administrator Robert A. Sturgell, NATA President James K. Coyne criticized the FAA and called for fundamental fairness in regulatory oversight following its latest emergency suspension order grounding a Part 135 air charter operator.
The Honorable Robert A. Sturgell
Administrator
Federal Aviation Administration
800 Independence Ave, SW
Washington, DC 20591
Dear Administrator Sturgell:
The National Air Transportation Association (NATA), the voice of aviation business, is the public policy group representing the interests of aviation businesses before Congress, federal agencies and state governments. NATA’s 2,000 member companies own, operate and service aircraft. These companies provide for the needs of the traveling public by offering services and products to aircraft operators and others such as fuel sales, aircraft maintenance, parts sales, storage, rental, airline servicing, flight training, Part 135 on-demand air charter, fractional aircraft program management and scheduled commuter operations in smaller aircraft. NATA members are a vital link in the aviation industry providing services to the general public, airlines, general aviation, and the military.
NATA and the Federal Aviation Administration (FAA) have worked very closely since the 2006 Challenger accident at Teterboro Airport that led to an aggressive review of operational control as is required to be exercised by on-demand operators certificated as air carriers under Part 119 and operated in accordance with Part 135 of the Federal Aviation Regulations.
During the last two and half years, the FAA and NATA have partnered to conduct operational control educational seminars at more than nine locations across the country, have held countless meetings discussing the topic, and have continued an open dialogue to ensure that agency concerns are addressed while ensuring fairness to the operating community. NATA, believing that the FAA was interested in cooperative efforts to enhance the standards of compliance within the industry, devoted significant resources to participate in the development of new guidance for industry and your inspector workforce and to inform the industry of this new information.
However, in view of on-going issuance of emergency suspension orders, most recently to one of our members, Air Trek, based in Punta Gorda, FL, the association believes that fundamental fairness in regulatory oversight is now being compromised to the detriment of the Part 135 on-demand air charter community, which consists primarily of small businesses.
Despite repeated assertions from the FAA that the agency would ensure fairness in the evaluation of operational control, it has become clear that the FAA favors certain classes of air carriers over others. Over the last 24 months, the FAA has issued, or threatened to issue, numerous emergency suspension or emergency revocation orders to Part 135 carriers that have ultimately resulted in the loss of certificates for the operators involved. However, while Part 135 air carriers have received the ultimate penalty for operational infractions, their Part 121 counterparts are simply fined and permitted to operate. This disparate treatment is evident when recent incidents are considered.
Southwest Airlines, a Part 121 airline, failed to complete required airworthiness directives (ADs). When this oversight was revealed, it was shown that a number of the carrier’s airplanes suffered from the unsafe condition that prompted issuance of the AD. Simply put, a Part 121 air carrier operated unairworthy aircraft on multiple occasions with passengers aboard. The penalty was a $10 million fine. There was never even a hint that the FAA would suspend or revoke Southwest’s air carrier certificate or that the FAA doubted that the carrier was maintaining sufficient operational control despite this significant lapse.
By contrast, in the last year NATA is aware of Part 135 air carriers being subject to emergency suspensions that have effectively bankrupted the carrier long before that carrier could exercise its rights to receive an ALJ hearing. In one case, the enforcement against AMI Jet Charter, the FAA never cited a single one of its hundreds of operations as having been conducted in an unairworthy aircraft or by an unqualified crew.
In nearly every recent case involving a suspension or revocation of a Part 135 on-demand operator’s air carrier certificate of which we are aware, the operators were cited for failing to comply with regulations when some of the methods and procedures in question were known to and approved by the local FAA inspectors responsible for oversight and management of the operator.
The FAA has placed our operator members in a catch-22 situation. Their FAA-assigned local inspectors are granted authority by the Administrator to inspect, oversee and ensure compliance with the regulations. Operators document their procedures for compliance in various manuals that are approved by the FAA via the local office. Operators seek guidance when compliance questions arise from their local inspectors. Yet clearly, operators cannot rely upon what they are told by their local FAA office. Time and again, inspection teams from FAA headquarters or regional offices descend upon an operator and determine that even though processes were approved locally they are now deemed deficient and noncompliant. Often, these inspection and enforcement actions occur without the agency even bringing the local inspectors into the process.
The FAA takes enforcement action against an operator under the auspices that the local representatives were incorrect in their interpretation and application of the rules. The operator is required to rely upon the local inspector, yet doing what your local inspector has approved is no defense for the operator.
What accountability is there for the inspector who approves actions later deemed by headquarters to be noncompliant? Surely an inspector who approved systems and processes which were so deficient as to result in an emergency suspension of an air carrier certificate needs at the very least some sort of remedial training? How can the FAA defend a practice where operators are assigned inspectors who are hired and trained by the FAA but ultimately whose approval is meaningless? Operators are being held accountable for erroneous (according to FAA headquarters) guidance and approvals issued in the field and to our knowledge there is no accountability for the inspectors making these errors. They are not sent for retraining, demoted, counseled or otherwise suffering from their poor performance.
Every Part 121 airline is assigned an FAA office specially dedicated to serving the carrier’s needs for guidance and approvals. No Part 135 operator receives this support. When a Part 121 airline repeatedly flies unairworthy aircraft, they are fined. When a Part 135 operator, acting with the concurrence of his or her assigned inspector, is cited for far less serious failures, emergency suspensions result. How can the FAA justify these disparities and claim that all air carriers are held to the highest standards?
NATA agrees that the FAA must ensure compliance with the regulations, but the FAA must also provide a reliable mechanism for an operator to have assurance that his or her business is indeed compliant. When the FAA deems that a local inspector has erred in his or her oversight and guidance to an operator, the agency should ensure that the operator implements corrective action. However, it is inexcusable and discriminatory for the FAA to take enforcement against an operator when the action in question was known to and approved by the operator¿s local FAA inspector. If the FAA intends to continue to state that their inspector workforce acts with the authority of the Administrator, then indeed an inspector’s approval should be respected and relied upon as a defense by an operator. Anything less makes local inspectors meaningless and all guidance and oversight should be coordinated directly between operators and FAA headquarters representatives whose opinions and interpretations are, presumably, reliable.
It seems quite simple to NATA and our members. An approval by your local FAA inspector should be accepted by the whole FAA. If there is an incorrect interpretation, the FAA should correct the inspector and have the operator adjust procedures to ensure compliance with the corrected information. When an operator acts with the approval of his or her inspector, that operator should not be subject to enforcement action.
We ask for your intervention to ensure that the enforcement arm of your agency is truly fair in fulfilling its mission. It is time for common sense to enter into this process.
Sincerely,
James K. Coyne
President
Cc: Kerry B. Long, Chief Counsel, Federal Aviation Administration
Nicholas A. Sabatini, Associate Administrator for Aviation Safety, Federal Aviation
Administration
James J. Ballough, Flight Standards Service Director, Federal Aviation Administration
Staff Contact:
Eric Byer
Vice President, Government & Industry Affairs
NATA
ebyer@nata.aero